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25-11-2018 4:57 pm  #41


Re: Help - surprise after 9 months (and it's not a baby)

Thank you, eezyrider.

Do you know if witness can also represent the appellant?

Also, I've read many other past cases and is it fine to conclude that first tier tribunal cannot dispute the duty amount? Only upper tribunal can?
Turbulentupstart, your reply would be appreciated.

Last edited by saphira (27-11-2018 7:57 pm)

 

27-11-2018 7:57 pm  #42


Re: Help - surprise after 9 months (and it's not a baby)

saphira wrote:

Thank you, eezyrider.

Do you know if witness can represent the appellant?

Also, I've read many other past cases and is it fine to conclude that first tier tribunal cannot dispute the duty amount? Only upper tribunal can?
Turbulentupstart, your reply would be appreciated.

 
You can nominate any person to represent you. As far as I am aware this person can also give witness evidence on your behalf.

The First Tier  tribunal can consider both the question of whether any duty at all is payable as well as the amount of the duty (and penalty). If you are dissatisfied with their decison you may then seek leave to appeal to the Upper Tribunal.

 

27-11-2018 7:59 pm  #43


Re: Help - surprise after 9 months (and it's not a baby)

saphira wrote:

Hi All,

When I sent the statement of authority, HMRC responded with the below:

Would you please confirm whether or not you will be represented at the hearing and if you will be could you please provide us with the name and contact details of your representative.
 
Would you also be kind enough to confirm whether or not you will be producing a skeleton argument in advance of the hearing and if you are, can you please confirm when you will be in a position to provide the same to the Respondents and the Tribunal.


Do I need to respond to them at all? Am I required to by law?
Also, I'm not too sure what they would like me to reveal when sending them the skeleton argument.

Your advise is much appreciated.

You are not required by law to respond, but the tribunal judge will look more favourably on your case if you are cooperative. A skeleton argument is just a summary of what you intend to say in the tribunal. It will help you to organise the presentation of your  case to the tribunal and avoid becoming "tongue tied" on the day of the hearing. 

 

27-11-2018 8:26 pm  #44


Re: Help - surprise after 9 months (and it's not a baby)

Many thanks, turbulentupstart.

     Thread Starter
 

03-12-2018 8:59 pm  #45


Re: Help - surprise after 9 months (and it's not a baby)

My main source of defence was going to be Article 37 but looking at HMRC's skeleton argument, they have it covered:

It is understood that the Appellant’s argument on the Consumption Ground is that, as a consequence of the cigarettes having been seized, forfeited and destroyed by Border Force, HMRC cannot raise an assessment to excise duty in light of Article 37 of the Excise Directive. However this argument is misconceived.

In Marcin Staniszewski v HMRC [2016] UKFTT 128 (TC)) the FTT held that such an argument was in essence an argument in relation to the chargeability to excise duty of cigarettes brought into the UK which had conclusively been determined by reason of the deeming provision in paragraph 5 of schedule 3 CEMA (the cigarettes only being liable to forfeiture on the basis that excise duty chargeable on them was unpaid). Consequently the FTT held that it had no jurisdiction to consider this (at [27]).

However, the FTT in Staniszewski went on to consider the point and concluded that the argument was misconceived in any event finding that: 35.1. Excise duty became chargeable when the goods were held for commercial purposes in the Member State other than that from which they were released for consumption. 35.2. Article 37 only applied to goods that had been totally destroyed or irretrievably lost in circumstances at a point prior to that at which a liability to excise duty would otherwise arise.

The FTT should follow the highly persuasive decision of the UT in Jacobson and the FTT in Stanisewski in rejecting the Consumption Ground and finding that Article 37 has no application where goods are seized, as here, on entry into the UK after the duty point and condemned or destroyed thereafter.

Last edited by saphira (03-12-2018 9:00 pm)

     Thread Starter
 

04-12-2018 9:13 pm  #46


Re: Help - surprise after 9 months (and it's not a baby)

" duty of cigarettes brought into the UK which had conclusively been determined by reason of the deeming provision in paragraph 5 of schedule 3 CEMA .."

Strictly speaking this does not apply to your case because you did issue a Notice of Claim, but then withdrew later. Therefore, you need to argue that you did not intend to withdraw your Notice of Claim, but rather you were hoping to settle the matter out of court. This possibility is provided for by Section 152(a) (compounding)  and Section 152(b)  (restoration) of the Customs and Excise Management Act.

If the tribunal were to accept this argument you may be able to argue that the goods were  for your own use and as such were not liable to duty,

Unfortunately the Article 37 point does not look promising at the present time so you will just have to hope for the best. The argument used by the FTT in Stanizewski is absurd in my opinion.  (see this post)

Article 37 was also considered by the UT in Jacobson http://www.bailii.org/uk/cases/UKUT/TCC/2018/18.html

However I have noticed that the UT did not state the provisions of Article 37 in full, and also they were merely expressing an opinion as it was not an actual ground of appeal. This opinion is not strictly binding on the FTT, but it will probably persuade them to reject the argument.

Anyway, hope it goes well at the hearing.

 

Last edited by turbulentupstart (04-12-2018 9:14 pm)

 

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